Recently, the Supreme Court of India’s Constitution Bench, headed by Justice Arun Mishra, delivered a long reasoned decision refusing to entertain a plea for the judicial recusal of Justice Mishra from sitting on the Constitution Bench constituted to hear a matter arising out of conflicting decisions of two coordinate benches of the Court, one of which was handed by Justice Mishra himself.
The 5-judge Constitution Bench was set up to decide on the correct interpretation of a statutory provision relating to compensation for land owners in cases of compulsory land acquisition under the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 [“the Act”]. The problematic functioning and self-inflicted institutional infirmities of the Indian Supreme Court have been widely criticized in recent times. One important aspect of this backsliding has been the blatant violation of the fundamental principles of natural justice. Even as retired Chief Justice violated the dictum of nemo judex in causa sua by sitting on a bench hearing issues concerning his own highly problematic conduct, the conduct of the other Supreme Court judges has also become the subject of controversy.
The doctrinal flaws in the refusal of the recusal order have been criticized elsewhere. In this post, we attempt to highlight some concerns which the Supreme Court needs to urgently address to strengthen its administrative functioning.
Background to the Controversy
The controversy arose last year when a 3-judge Bench by a 2:1 majority in Indore Development Authority v. Shailendra (Dead) [“Case-2”] set aside the 2014 decision of the Supreme Court in Pune Municipal Corporation v. Harakchand Misirmal Solanki [“Case-1”] by another 3-judge Bench, both concerning the interpretation of Section 24 of the abovementioned statute on compensation for compulsory land acquisition. In addition, the judges comprising the majority – Justices Mishra and AK Goel – held that the judgment in Case-1 was ‘per incuriam’. While holding so, the Court drifted away from the established principle that latter coordinate benches arebound by the decision of an earlier coordinate bench, and any overruling can be done only by a decision of a larger bench. The new judgment created chaos as it meant reopening the various High Court decisions that were settled under the principle evolved in Case-1.
Post Case-2, when a similar land acquisition matter came up before yet another 3-judge Bench in 2018 in Haryana v. GD Goenka Tourism Corporation, the Court raised concerns about judicial impropriety when it was appraised of the above facts. As a matter of caution, the Court then noted that:
“Insofar as cases pending in this Court are concerned, we request the concerned Benches dealing with similar matters to defer the hearing until a decision is rendered one way or the other on the issue whether the matter should be referred to larger Bench or not. Apart from anything else, deferring the consideration would avoid inconvenience to the litigating parties, whether it is the State or individuals.”
Most recently in October, the Chief Justice constituted a new Bench headed by Justice Arun Mishra to conclusively decide the correct statutory interpretation of the Section 24 of the Act. Given that Justice Mishra had delivered one of the judgments in Case-2, it was argued by many academics and the Farmers Association, as well by the senior counsel of the Respondent that Justice Mishra must recuse himself from the case. They emphasized that it may be tough to change Justice Mishra’s views as he had given elaborate reasons for declaring the 2014 decision inCase-1 case per incuriam, which indeed shows a strong position towards a particular interpretation of the provision under consideration.Reference was made to the observations of Justices Chelameswar and Kurian Joseph in the landmark 2015 Supreme Court Advocates-on-Record v Union of India case that reasonable doubt entertained by a litigant about the partiality of the judge is a ground for recusal.
Concerns for the Administration of Judicial Precedent
Aside from doctrinal questions about the jurisprudence on judicial recusal, this episode raises important questions on ensuring some certainty in precedent from the Supreme Court. First, can a bench of the Supreme Court hold the judgement of a coordinate bench per incuriam? Second, what should be the appropriate administrative response of the Chief Justice when a bench passes such an order so as to ensure certainty and clarity in its function of administering justice?
With respect to the first question, the position has been authoritatively settled by the Supreme Court’s 5-judge Constitution Bench decision in Central Board of Dawoodi Bohra Community v. State of Maharashtra (2004), where it was held that a bench cannot overrule a precedent set by another bench of equivalent size, but must, refer the matter to the Chief Justice for the constitution of a larger bench. This rule ensures stability in the court’s rulings but also provides the court with the necessary flexibility to correct its errors in appropriate cases. Therefore, ideally speaking, the present controversy would not have arisen if the 3-judge bench in Case-2 had referred the matter to the Chief Justice instead of holding the earlier decision by a coordinate bench in Case-1 as per incuriam. The problem heightens when we see that in Case-2, two judges constituting the majority effectively overruled a decision handed down by bench of 3 judges speaking unanimously. Not too long ago, a bench of Nariman and Kaul, JJ. had observed that the rule of a judgment decided by 4:3 judges overruling a 5-judge bench’s unanimous decision is problematic. Given that the total bench strength in Case-2 remains same as the previous decision, it is even improper to argue that as a practice the emphasis must be laid at the size of the bench and not the majority.
This raises the second question, which pertains to the appropriate administrative response of the CJI in a case like this. This is related to the controversy about the administrative power and function of the Chief Justice to constitute benches as the ‘master of roster’. The power to decide the roster and the constitution of the benches rests entirely with the Chief Justice. Regarding the constitution of Constitution Benches, Order VI, Rule 2 of the Supreme Court Rules, 2013 provides that:
“(2) Where in the course of the hearing of any cause, appeal or other proceeding, the Bench considers that the matter should be dealt with by a larger Bench, it shall refer the matter to the Chief Justice, who shall thereupon constitute such a Bench for the hearing of it.”
Pursuant to the 2018 Supreme Court judgment in the case where the Senior Advocate Shanti Bhushan had filed a writ petition praying to read the term ‘Chief Justice’ as the Collegium of Judges in context of the CJI’s administrative duties, the prerogative power of the CJI has been established. The judgment affirmed that as ‘an institution in itself’, the CJI had the sole administrative power to constitute benches and ensure judicial discipline and proper day to day administrative functioning.
Given the concentration of rostering power with the CJI, it is important to ensure that this discretion is discharged appropriately. For example, with the consideration of all the relevant factors. The unprecedented press conference by 4 senior Supreme Court judges that happened in response to the alleged improper constitution of benches hearing important petitions, in derogation of the principles of natural justice, was an event that highlighted the perils of improper bench constitution. The present matter concerning Justice Mishra is another instance which has raised deeper concerns about the functioning of the highest court of law.
It is ultimately the duty of the judge concerned to analyze whether a reasonable person would believe that there is a possibility of bias, and if the answer is in the affirmative, then he must decide to recuse from the bench, otherwise, justice might not be seen to be done. This is a delicate position to be in, because deciding either way leads to multiple questions for the judge to answer. Irrespective of the decision of Justice Arun Mishra to not recuse in the ‘interest of the judicial system’, it is clear that the confidence of the litigants as well as the public at large in unbiased, impartial and fair dispensation of justice has been compromised.
There is a need for a better, systematic and fair formation of Benches on the part of the CJI as per relevant criteria by following a prescribed procedure. Considering that Justice Mishra was part of Case-2, the CJI could have chosen someone else from a large roster of 34 judges to sit on the Constitution Bench. It would have satisfied the reasonable person test without putting a judge in a situation where he has to go through a recusal hearing.
Prannv Dhawan is a 3rd-year law student at National Law School of India University, Bangalore (India). He leads the Law and Society Committee at the University and can be contacted at email@example.com.
Anmol Jain is a penultimate year Constitutional Law Honours student at National Law University, Jodhpur (India). He was the Editor-in-Chief of Comparative Constitutional Law and Administrative Law Quarterly. He can be contacted at firstname.lastname@example.org.